Narayana Pillai Narayana Pillai vs Eravi Narayana Panicker and Others

Nandana Menon, J.—This second appeal has been preferred by the first Defendant and arises out of an order in execution. Tibet original decree-holder was one Kesava Panicker. The firet execution petition was filed by him. After that he passed away. His legal representatives were impleaded as additional decree-holders 2 to 7. The tights of Nos. 3 to 7 were assigned to two persons. They filed the execution petitions seeking to execute fee whole of the decree for the benefit of all the decree-holders impleading decree-holder No. 2 also as a party. Objections were raised by the first Defendant. The objections pressed are (1) that the assignee-decree-holders who seek to execute by themselves are not competent to execute the decree, and (2) that execution cannot be allowed without production of a succession certificate as regards personal reliefs. Both the lower Courts rejected these objections.

We will first of all deal with the maintainability of an execution application by assignees of the rights in a portion of the decree. Here the assignees obtained only the rights of decree-holder Nos. 3 to 7. But what they .sought was the execution of the decree as a whole for the benefit of themselves and decree-holder No. 2 who was also impleaded as a party. Now what is contended on behalf of the Appellant is that when it is a question of the assignees representing only a part of the interest in the decree without the junction of the other decree-holders representing the other part they have no right to execute. It is pointed out that Order 21, Rule 15 and 16 of the CPC do not recognise any such right. Order 21, Rule 15 which deals with the application for execution by a joint decree-holder and Rule 16 which deals with the application for execution by transferee of a decree are as follows:

Rule 15 (1). When a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless die decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the decree-holder.

(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application.

Rule 16. Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the applications were made by such decree-holder:

Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution.

Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.

Thus Rule 15 says that one of the joint decree-holders can apply for the execution of the whole decree though it must be for the benefit of all. If under an assignment the rights of a decree-holder passed to assignee the right to execute which one of the joint decree-holders had also would pass to the assignee of that joint decree-holder. If the contention of the Appellant is accepted it would mean that the assignee from a joint decree-holder will obtain a lesser right than what the assignor himself had with regard to the execution of the decree. The question is whether there is any provision in the CPC which warrants such a conclusion. The wording in R. 16 clearly indicates that the assignee of a joint decree-holder derives the same rights as his assignor with regard to the procedure to be adopted in executing the decree. The- words "where a decree or if a decree has been passed jointly in favour of two or more prrsuis, the interest of any decree-holder in the decree is transferred" clearly contemplates not only the assignment of the rights in the entire decree by the sole decree-holder but also the assignment of the fractional right of a joint decree-holder.

As pointed out by Chitaley in Note 7 of his commentaries to Order 21, Rule 16 the words ''or if a decree has been passed jointly in favour of two or more persons the interest of any decree-holder in the decree'' were newly incorporated in the rule when the CPC was revised as per Act 5 of 1908. This amendment was obviously for the specific purpose of making it clear that the assignee of a fractional share in the decree had the; same right as one of the joint decree-holders with regard to execution.

Then again, the words ''the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the applications were made by such decree-holder'' clearly cover the right of die transferee of the entire interest to the decree as well as of the transferee of the fractional interest.

Assignees of body the categories arc allowed to execute in the same way and in the same manner as their assignors could have executed. So when one of tire joint decree-holders could take out execution for the whole of the decree for the benefit of all the decree-holders his assignee also could do so. No other interpretation can be placed on the provisions contained in the aforesaid rules in Order 21 of the CPC Code.

Coming to the decisions cited on the point, in Bhagwant Balajirao and Others Vs. Rajaram Sajnaji and Others, the execution Court held that an application filed by the assignee of the decree-holder''s right was not maintainable as the assignment was only of a portion of the right under the decree:. The learned District Judge in appeal held that the nature of the assignment there was such as in effect transferred the entire interest in the decree-holder.

When the matter was taken up to the High Court, Rajadhyaksha J., disposed of the matter by accepting the interpretation placed on the assignment by the District Judge and did not discuss the question as to whether there was any disability placed upon the assignee of- a portion of the right under the decree. Macklin, J., at page 159 observed as follows:

I am not aware of any provision of the CPC which prevents the holder of a decree from assigning it in part any more than I am aware of any provision of law which prevents an owner of any property disposing of it as a whole or in part. The only difficulty in the way of an assignee of a part rather than the whole of a decree is that in many cases decrees cannot be executed except as a whole. If therefore he is the assignee of only a part of the decree, he cannot in such a case execute for a part of the decree and he is not entitled to cute for the whole of the fleoree because he is not the owner of the whole of the decree. So far as I am aware, there is nothing whatever illegal is his becoming the assignee of a part only of the dcaoe.

His rights, so far as they go, are exactly the same as the rights of his assignor; and if it would be open a part only of the decree, the rights of the assignee would be exactly the same, neither more nor less."

Those observations clearly go to show /that one of the joint decree-holders can qxeeute the decree as a whole but for the benefit of all, his assignee also P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and Another, is a decision of a Full Bench of the Madras High Court it is a clear authority in support of the position that a fractional interest in a decree can be transferred and the transferee there under can execute just as one of die joint decree-holders.

There, the questions arose whether under that Indian CPC of 1908 a decree can be transferred in part and if so, whether the part transferee can be made a party in pending execution proceedings and allowed to execute. The following observations of Wallis C. J. at page 600 may be pointed out:

It was well settled under the old Code that there could be part transfers of a decree: Kishor Chand Bhakat v. Gisbome & Co., ILR 17 Cal 341 (C) and Venkataramaniah v. Venkatacharulu, ILR 33 Mad 80 (D), and it was also settled that one decree-holders could transfer his late Muthunarayana Reddi v. Balakrishna Reddi, ILR 19 Mad 306 (E). I do not find any sufficient indication in the new Code that it was intended to alter the law in this respect.

On the contrary the present Code contains a new general S. 146 enacting that, save as otherwise provided by Code or by any law for the time being in force, where any proceeding may be taken, an application made by or against any person, thea the proceeding may be taken or the application may be made by or against any person claiming under him.

This general provision is to take effect unless otherwise provided in the Code itself or by any being in force, and, even if it should be held that the part transfer of a decree is not .provided for in the rules, though it is not prohibited, that would not prevent due effect being given to such part transfers under this section itself which is wider than the rules if it can be read as authorising such a part transfer, section should I think have a beneficial interpretation, and be read as supplementing the applications in execution by such a part transferee.

Again at page 603, Spencer, J. observes as follows:

It can see no objection to the assignee of a portion of a decree being allowed to come in sad execute it on behalf of himself and his co-decree-holder under Order 21, Rule 16 of the CPC provided that the Court imposes under Rule 15 such terms for the conduct of the execution proceedings as may be necessary for the protection of the interests of others, such as a direction, for payment into Court of sum realised under the decree.'''' interests of others, such as a direction, for payment into Court of sum realised under the decree.'''' The aforesaid Full Bench decision was followed in Shankar Hari Vs. Damodar Vyankaji, There the contention was that the execution application filed by one of the assignees of the decree was not maintainable. Rejecting the said plea at page 381 it was observed as follows:

It is true that the definition of "decree-holder" HI the CPC of 1882 included a transferee of a decree, and those words have now been omitted in Section 2, Sub-section (3), of the Code of 1908. But that omission is made good by the newly added Section 146 whereby the transferee of a decree, being a person claiming under the decree-holder, steps into his shoes and for all purposes he may be regarded as a decree-holder himself. If the assignment of the decree is jointly in favour of more than one, then such assignees may be deemed as joint decree-holders for the purpose of the application of the provisions of Order 21, Rule 15 of the Code.

This, was the view taken by the Full Bench of the Madras High Court in ILR 44 Mad 919 : P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and Another,

It may be pointed out that S. 146 of the CPC 1908 referred to is as follows:

Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or ?against any person then the proceeding may be taken or the application may be made by or against any person claiming under him.

The observations by the learned Judges in Ram Sahai Vs. Madan Lal Kanhaiya Lal and Others , show that the position taken up in the aforesaid decisions was approved. Coming to the decisions relied upon en behalf of the Appellant, Mazhar Husain Vs. Musammat Amtul Bibi and Another, says that unless the interests of the transferor in a decree are extinguished by the transfer there is not such a transfer as Order 21, Rule 16 contemplates.

This decision is commented upon in Ram Sahai Vs. Madan Lal Kanhaiya Lal and Others and the observations there show that it Baa not been approved. Narayandas v. Tejmal AIR 1934 Bom 59 (I), is a single Bench decision where the Full Bench decision in P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and Another, has been dissented from. A later case of the Bombay High Court itself has followed the Madras view. So- we are clearly of opinion that the view taken by the'' Full Bench decision of the Madras High Court is the correct one and we do not see any reason to diverge from it.

The wording of the relevant provisions in the CPC already referred to can lead only to the conclusion, that the assignee of a fractional interest in the decree is fully entitled to execute the decree as one of the joint decree-holders, though it must be for the whole interest and for the benefit of all persons interested in the decree. So the position taken up by the lower Court is correct and no1 question of interference arises.

The next point urged is that succession certificate ought to have been produced as the original tree-holder has passed away and the interest has devolved on his legal representatives the execution being with regard to the personal relief against the judgment-debtor also. The learned District Judge relies on Davu Settu v. Abuul Sattar bettu, 31 Ker LJ 80 U),''as authority to show that when execution has already been initiated by the decree-holder no succession certificate need be produced by his represoiitatives-in-interest who continue the proceedings. There at page 84 it is observed as follows:

The next question is whether the'' additional Plaintiffs are competent without a succession certificate, to execute the decree except as against the property. The answer to the above question will depend upon the interpretation of the term ''proceed'' employed in Section 3, Clause (b) of the Suceession Certificate Act. The expression suggests that the necessity to produce a succession certificate for carrying on execution exists only in cases where the original decree-holder has not initiated proceedings in execution.

In instances where he dies after having commenced execution, his heirs who are brought on record in his place have the right to continue the proceedings in execution initiated by the original decree-holder without, a succession certificate. The scheme of Clauses (a) and (b) of Section 3 is clear on this matter. While Clause (a) contemplates the stage when a decree is to be passed, Clause (b) contemplates the stage when the execution is started.

The learned Judges there relied upon Venkatachalam Chetti Vs. Ramaswami Servai (dead) and Others, and Mohamed Yusuf v. Abdur Rahim, ILR 26 Cal 839 (L). The decisions cited on behalf of the Appellant like those in Abdul Sattar v. Satya Bhushan Das, ILR 35 Cal 767 (M), Nanchand v. Yenawa, ILR 28 Bom 630 (N), Ramaswamy Ayyar v. Subramanian, 26 Ker LR 98 (O), all only deal with die question of the necessity of a succession certificate before a decree giving personal relief is granted.

The only decision cited which deals with the question of necessity for a succession certificate in execution is the Single Bench decision in Ramji Ladha v. Harisanji AIR 1955 Kut 6 (P). There tho learned Judge dissented from die decision in ILR 26 Cal 839 (L) and Kshetra Mohan Poddar v. Azhizullah Mea AIR 1920 Cal 580 (Q) and followed the view taken up by the Nagpur High Court in Tcjraj Rajamal v. Rampyari AIR 1938 Nag 528 (R).

In AIR 1938 Nag 528 (R), the decree-holder passed away while the execution petition filed by him was pending and his legal representative, namely, his widow, sought to get herself substituted in the place of her husband and continue the execution, It was held that she was bound to produce a succession certificate. The following observations therein, may be pointed out:

Now it is said she was not proceeding on her application but on his application and therefore Section 214 (1) (1)) does not apply: ILR 26 Cal 839 (L), and 57 Ind Cas 902 : AIR 1920 Cal 580) (Q), which simply follows, ILR 26 Cal 839 (L). ILR 26 Cal 839 (L), dissents from a Full Bench judgment reported in Fateh Chanel v. Muhamma:! Bakhsh, ILR 16 All 259 (FB) (S). The latter case however appears to us to be distinguishable, for it was concerned with a suit, not with execution proceedings.

Since the new Rule, Order 22, Rule 12 was made the old question whether execution proceedings abate on death has been set at rest. Abatement does not apply to execution proceedings. The result of that is however that the heirs need not take steps for sub-stitution under Order 22, Rule 3 but may apply to carry on the proceedings or may file a fresh application. In other words, execution proceedings do not abate but live on and, as some one must take the next step and death terminates all agencies, the person entitled, i.e., the personal representative or heir, can come before tire Court.

That person when he comes will be claiming for himself at least where he, or she, is heir or beneficially interested.

The proper application is for leave to carry on (or proceed with) the pending execution proceedings. Such an application would fall within the words upon an application of a person claiming to be so entitled''. ''To be so entitled'' means, as is plain from Section 214 (1) (a) ''to be entitled to any part of the deceased''s estate''. This widow claims to ho so entitled and she makes an application which is necessary before the Court can proceed with a pending execution. The Court cannot on that application proceed with execution unless a succession certificate is produced.

So in this case even when the prayer was to carry on the execution application filed by the original decree-holder alter substitution of the legal representatives it was held that a succession certificate was necessary. So it fully supports the Appellant''s position here. In ILK 26 Cal 839 (L), what was laid down was only that an application filed by a decree-holder can be continued by his successor-in-interest without the production of a succession certificate for at page 841 it is observed as follows:

But there is another reason why we think that the contention of the Appellant in this case should fail and that is this that Section 4, sub-section (l), Clause (b) which is the only provision of the Succession Act under which the case could possibly come can have no application to the present case. For, that clause provides that no Court shall ''proceed upon the application of a person claiming to be entitled to the effects of a deceased person'' to execute against: a debtor of such deceased person a decree or order for the payment of his debt.

Now, in the present case the Court was not proceeding upon the application of a person claiming to be entitled to the elleets of a deceased person but was proceeding originally upon lh0 application of the creditor himself and it was only during the. pendency of the execution proceedings that the original mortgagee decree-holder died and his legal representatives, the present Respondents, were brought on record.

In AIR 1920 Cal 580 (Q), also it was the same principle that was laid down. Section 4 referred to in ILR 28 Cal 839 (L), is of'' the Indian Succession Act of 1889 which corresponds to S. 214 of the Succession Act, 39 of 1925, which is the same as S. 3 of the Travancore Act referred to in 31 Trav LJ 80 (J).

So it cannot be said that even the Calcutta cases are authorities to support the position that the legal representatives and their assignees-in-interest can iile a fresh execution application and sock reliefs without the production of a succession certificate on the ground that a prior application had been filed by the original decree-holder. We are not called upon here to consider whether that position itself is correct as in the present case what we have to consider is whether the legal representatives of a decor-holder and their assignees can lile a fresh execution application and seek to enforce personal relief without the production of a succession certificate. In ILR 55 Mad 352 : Venkatachalam Chetti Vs. Ramaswami Servai (dead) and Others, the only question consider, ed was whether the legal representatives of a decree-holder can proceed with the execution application filed by the original decree-holder.

So these decisions did not support the principle laid down in 31 Trav LJ 80 (J). Section 214 (b) of the present Succession Act is as follows:

No Court shall....

(b) proceed upon an application of a person claiming to be so entitled to execute against such a debtor a decree or order for payment of his debt, except on the production by the person so claiming of etc.

So the wording clearly indicates that when a fresh execution application is tiled by the successors-in-interest a succession certificate is essential whatever be the position when it is a question of a continuation of an execution application filed by the original decree-holder. So in the present case it is clear that the production of a succession certificate is necessary in order to enforce the personal reliefs granted under the decree. Of course, with regard to execution against the property charged no certificate is necessary. The lower appellate Court was wrong in holding that with regard to the personal reliefs also no succession certificate need be produced.

In the result, it is held that the present execution Petitioners, namely, the assignees of the rights of some of the legal representatives are entitled to execute for the benefit of all interested in the decree taut if they want to enforce the personal reliefs granted under the decree they are to produce a succession certificate authorising the legal representatives of the original decree-holder to do so. The second appeal is allowed to the said extent.

It is considered that it is only proper that the Respondents are given an opportunity to produce a succession certainty. The execution Court is directed to give reasonable time for the same. The parties are directed to suffer their own costs.